Why do the time if you didn’t do the crime?

Israel’s overstretched justice system thrives on admissions of guilt and often uses subterfuge to get suspects to confess. And it’s not just heinous crimes, like murder, rape and arms dealing; the less severe the crime, the more likely a suspect is to falsely confess. Innocent people, often society’s weakest, are paying the price. After devoting the first part of the Israeli Innocence Project to the dearth of retrials in the country and the number of innocent individuals serving time in prison, Shomrim focuses in this second installment on the system that paved the way for them to end up there.

Israel’s overstretched justice system thrives on admissions of guilt and often uses subterfuge to get suspects to confess. And it’s not just heinous crimes, like murder, rape and arms dealing; the less severe the crime, the more likely a suspect is to falsely confess. Innocent people, often society’s weakest, are paying the price. After devoting the first part of the Israeli Innocence Project to the dearth of retrials in the country and the number of innocent individuals serving time in prison, Shomrim focuses in this second installment on the system that paved the way for them to end up there.

Israel’s overstretched justice system thrives on admissions of guilt and often uses subterfuge to get suspects to confess. And it’s not just heinous crimes, like murder, rape and arms dealing; the less severe the crime, the more likely a suspect is to falsely confess. Innocent people, often society’s weakest, are paying the price. After devoting the first part of the Israeli Innocence Project to the dearth of retrials in the country and the number of innocent individuals serving time in prison, Shomrim focuses in this second installment on the system that paved the way for them to end up there.

Roni Singer

A suspect appearing in court for a remand hearing. Photo for illustration purposes: Reuters

December 28, 2020

Summary

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n unusual document was submitted last July to the Nazareth District Court. In a letter to the court, Ahmed Husseini, 23, a resident of Zemer, an Arab local council in Israel’s Central District, retracted a confession he gave to the police, and repeated in court, regarding his involvement in illegal arms dealing. Husseini claimed that he opted at the time to confess after his lawyer, Wissam Lidawi, persuaded him that presiding Judge Hana Sabag would never acquit him.

Professing his innocence, Husseini stated in his letter, a copy of which was shared with Shomrim, that his lawyer told him that he wouldn’t advise him to plead guilty before any other judge, but that “this court is known for coming down hard when it comes to firearm offenses,” and could impose a severe sentence. Husseini was swayed and pleaded guilty to the charges he now denies.

Husseini was arrested four years ago and charged, along with three others, with brokering the sale of a grenade, rifle and handgun to an undercover police officer. In the wake of his retraction, Husseini’s trial has now been suspended, with both sides at the time expecting proceedings to end in a plea bargain, in accordance with the defendant's confession. The matter, meanwhile, has been referred to the Israel Bar Association’s Ethics Committee.

Whether or not Husseini is guilty is up to the courts to decide; his case, however, involving the retraction of a confession, shines a light on an under-examined issue in the Israeli legal and justice system: Some 80 percent of the indictments filed by the State Attorney’s Office end in convictions, irrespective of whether a trial is conducted or not, with the vast majority of these convictions – around 95 percent – obtained thanks to an admission of guilt on the part of the accused. The rule of thumb is simple: The less serious the offense, the higher the rate of convictions via confessions.

Prof. Oren Gazal-Ayal: “Someone who’s been accused of assaulting a police officer already knows that they won’t be able to prove they’re innocent, so they’d rather admit to the offense than risk a conviction. The false conviction rate hasn’t dropped since.”

Prof. Oren Gazal-Ayal. Courtesy.

Prof. Oren Gazal-Ayal, dean of the Law Faculty at the University of Haifa and deputy chair of the Public Committee for the Prevention and Correction of False Convictions, who studied the issue in 2012, provides an example. “Someone who’s been accused of assaulting a police officer already knows that they won’t be able to prove they’re innocent, so they’d rather admit to the offense than risk a conviction,” he says. “The false conviction rate hasn’t dropped since.”

That said, a confession no longer holds the status of unimpeachable evidence, as it once did; these days, the justice system gives increasing weight to forensic evidence, such as DNA findings – but a defendant’s admission of guilt still packs a strong punch. A study conducted by the Innocence Project, an American legal organization founded in 1992, which has secured the release from prison of thousands of innocent people, revealed, astonishingly, that out of a pool of 305 individuals whose convictions were subsequently overturned following a re-examination of DNA found at the crime scenes, around a quarter were also convicted on the basis of a confession they gave.

Why would someone confess to a crime they didn’t commit? Researchers who have studied the issue say that, unless you have been caught up in similar circumstances, you can’t truly comprehend the sense of helplessness and emotional distress that drives someone to confess to something they didn’t do. Take, for example, the case of Elisha Haibtov, who confessed to a murder he didn’t commit and was acquitted some two years ago by the Supreme Court, after serving 12 years behind bars.

Haibtov confessed to the murder in 2002 of Shai Edri, a pool hall worker in the southern town of Sderot. He gave his confession to a jailhouse snitch who shared his cell for several weeks. During his time in detention, Haibtov didn’t meet with a lawyer of his choice and used heroin with the police informant. Under initial questioning, Haibtov said he didn’t commit the murder, but as time went by, his emotional state declined, and three weeks after his arrest and detention with the police informant, he confessed to being the killer.

Some 80 percent of the indictments filed by the State Attorney’s Office end in convictions, irrespective of whether a trial is conducted or not, with the vast majority of these convictions – around 95 percent – obtained thanks to an admission of guilt on the part of the accused. The rule of thumb is simple: The less serious the offense, the higher the rate of convictions via confessions.

Megiddo Prison. Photo: Reuters

“His was a case of a scandalous false conviction with all the familiar telltale signs – and no other evidence at all,” says Hagit Larnau, the attorney who represented Haibtov in his Supreme Court appeal, which ended in a rare acquittal. “They’re always talking about the presumption of innocence, but when defendants like Haibtov appear in court, they’re up against a state prosecutor, a loyal public servant armed with a case file. If they’ve decided to file an indictment, chances are the individual is guilty after all – that’s how the system views things.”

S. also confessed to a crime he didn’t commit – sexual assault. He did so after being questioned for several hours and denied access to the psychiatric medication he required. S. was arrested some three years ago on suspicion of assaulting, injuring and attempting to rape a young woman in Netanya who was on her way home at four o’clock in the morning. Following his interrogation, he admitted to dragging the woman into a stairwell, beating her with a rock and trying to rape her. After confessing, he reconstructed the crime, and charges were filed against him. His confession kept him in detention for 99 days.

“I remember watching his interrogation and reconstruction and being shocked,” his defense attorney, Shiran Bergman, recalls. “You could clearly see S. walking past the building where the incident occurred, and then the police officers directing him to backtrack and stand where the incident took place. You could see he was admitting to things that didn’t happen. I argued at his remand hearing that not only was the reconstruction problematic, but that S. fell into a population sector that tends to give false confessions; he has a mental disability and doesn’t have family support.”

The judge upheld Bergman’s arguments and S. was released from detention; the state, nevertheless, chose to press ahead with its indictment and went to trial, up until the day the victim was due to appear in court. It then turned out that she had told prosecutors she was no longer confident that she had correctly identified her attacker. At that point, the state decided to retract its indictment and acquit S.

A Bedouin woman takes on the state prosecution

Meanwhile, the case of Afaf Gilawi – a Bedouin woman up against a law enforcement system that accused her of murdering another woman and dismembering the body – could serve as material for seminar papers at law schools around the country. Gilawi, 37 today and living in Be’er Sheva, protested her innocence from the very beginning – but was convicted of the August 2014 murder and spent almost three years in prison. The indictment against her alleged that she murdered Rim Muslami, a 27-year-old Jaffa woman who was in a relationship with a man with whom Gilawi was also romantically involved. According to the indictment, in August 2014, Gilawi made plans to go out for the evening with Muslami. On the drive from Tel Aviv to Be’er Sheva, with a third individual in the car, Gilawi allegedly got Muslami drunk before the three of them went up to Gilawi’s apartment. Muslami was murdered that same night, and the indictment claimed that Gilawi was the one to dump the body in an open field. The state also charged that a few days later, Gilawi met up with the man with whom she was involved romantically and planted the victim’s cellphone and three of her bones in his car. The man was arrested but released soon thereafter, and the police, encouraged by the state prosecution, focused on Gilawi as their prime suspect.

“Gilawi was easy pickings; they didn’t prove motive; there was no conclusive evidence; she wasn’t able to provide many details. Although there were other suspects with motives for the murder, police and the state prosecution targeted a powerless Bedouin woman,” I was told in the past by Gilawi’s lawyer, Orit Hayoun. Studies show that weaker sectors of the population are more at risk when it comes to false convictions, with groups such as minorities, minors, the disabled, immigrants and people who don’t speak the language falling into this category.

The Innocence Project, an American legal organization founded in 1992, revealed that out of a pool of 305 individuals whose convictions were subsequently overturned following a re-examination of DNA found at the crime scenes, around a quarter were also convicted on the basis of a confession they gave.

Prof. Barry Scheck (right), co-founder of the U.S.-based Innocence Project, with Larry Fuller, who was released after 25 years in prison in Dallas, Texas. Photo: Reuters

The fact that the defendant was a powerless woman was just one of the warning signs. The problems with the legal proceedings intensified when it emerged at a certain point in the trial that the state was struggling to provide the court with sufficient evidence to prove that Gilawi was the killer – and the two sides were sent to mediation. Gilawi was told that her only other option was to press ahead with the trial, which was now going to take even longer in light of the withdrawal of one of the judges. During the mediation process, and not in the presence of her lawyer, Gilawi was offered a deal under which she would plead guilty to an oddly-named offense, “providing the means to commit a crime,” and be released immediately after almost three years behind bars. Gilawi took the deal and was released with a criminal record, but not a murderer. Waiting on the outside for her were her three children, and Gilawi would have been willing to admit to anything just to be with them again.

The jarring manner in which the case ended marked the beginning of a struggle to expose the chain of failures in the handling of the investigation and how the trial was conducted. Was Gilawi even capable of committing such a brutal murder, including dismembering the body by herself? Why wasn’t sufficient weight given to the testimony of a new witness who provided fresh details about the night of the murder? Why was an official forensics report amended at the request of the State Attorney’s Office while the trial was ongoing and without informing the defense?

According to data provided by the police, in 24.5 percent of the police lineups that took place during the course of investigations from 2016 to 2018, the complainants pointed out individuals who had no connection with the incident at all.

A police lineup. Illustration: Shutterstock

Another issue that was looked into involved the underhand retraction by the state, without informing anyone, of an exhibit it had submitted previously to the court. There were also problems with the video documentation of the location of the body and a series of additional failures too, all of which culminated in a 30-page report that was sent by Gilawi’s lawyers to David Rosen, a retired Tel Aviv District Court judge who now serves as ombudsman of the state representatives in the courts. Rosen upheld almost all of the complaints and advised the State Attorney’s Office to draw the necessary conclusions concerning the two prosecutors alleged to have mishandled the case.

Gilawi is currently awaiting a decision on a lawsuit she filed against the state in which she’s demanding compensation for the time she wrongly spent in prison; she chose, therefore, not to be interviewed for this article.

Confessions come long before the trial

Through no fault of her own, Gilawi is now a part of the dismal statistics pertaining to false convictions in Israel. According to his research in the past, Gazal-Ayal found that just 1 percent of the cases that make it to court end in a full acquittal. “Acquittals in Israel are an endangered species,” confirms jurist Prof. Boaz Sanjero, author of numerous articles and books on the subject of wrongful convictions.

Most of the cases that ended in false convictions, it turns out, have involved people who didn’t plead innocence at the start of the proceedings against them. Many of them turned up to court and admitted to the charges they were facing. Some were quick to plead guilty at the early stage of the reading of the indictment, hoping for a more lenient sentence after sparing the legal system the need to go through the proceedings. Other defendants plead guilty after having spent a long time in detention, and some do so during their trial itself, after they’re offered a tempting plea deal.

“The system incentivizes the individual to confess from the moment they’re arrested and all the way down the line thereafter – up to the parole board hearing in prison,” says Dr. Anat Horovitz, deputy chief at the Public Defender’s Office. The efforts the system makes, she adds, bear fruit. Some of this fruit is also a fact that no one in the legal system would dispute: Sitting in prisons in Israel today are innocent individuals who’ve been wrongly convicted. How many? “It’s hard to figure out the rate of false convictions because there’s no way of quantifying it. And in most cases, we’ll never know the answer,” Horovitz says.

Dr. Anat Horovitz: “The system incentivizes the individual to confess from the moment they’re arrested and all the way down the line thereafter. It’s hard to figure out the rate of false convictions because there’s no way of quantifying it. And in most cases, we’ll never know the answer.”

Attorney Horovitz. Photo: Government Press Office

As reported in the first part of Shomrim’s Israeli Innocence Project, since the establishment of the state, the Supreme Court has heard 33 requests for a retrial, 24 of which ended in an acquittal. However, unlike those instances in which individuals have professed their innocence and won retrials, false convictions also include cases in which the state retracts its indictment further down the line, sometimes after new evidence or testimony comes to light and allows the accused to walk free. How many cases like these are there? As we’ve already established, figures are nowhere to be found.

“There’s no system that doesn’t make mistakes, and it’s unreasonable to assume that the legal system is free of errors,” says Sivan Russo, who served until recently as a senior official at the State Attorney’s Office and now works at the law firm of Tulchinsky Stern Marciano Cohen Levitski & Co. “But I disagree with the basic assumption that the state prosecution is driven by a desire to achieve convictions. I served in the State Attorney’s Office for 12 years and was witness to everything. In most instances, the state does adopt a particularly stringent standard, and there’s a profound understanding of the significance of criminal proceedings in an individual’s life. We took a critical view of things. I can say, nevertheless, that the State Attorney’s Office is not a monolith, and we’re all people in the end.”

The most famous false conviction in Israel is probably that of Amos Baranes, who spent eight years behind bars for the 1976 murder of 19-year-old soldier Rachel Heller and waged a years-long legal struggle to clear his name, which he finally achieved in 2002. Also etched in Israelis’ collective memory are the abovementioned acquittal of Elisha Haibtov and the doubts surrounding Roman Zadorov's conviction for the murder of 13-year-old girl Tair Rada in September 2006, which still echo loudly outside the prison in which he’s serving his sentence. The Supreme Court announced recently that, at the request of Zadorov’s defense attorney, the court will conduct a hearing on new evidence that could lead to a retrial.

Most of the confessions and ensuing convictions come long before a trial. “Everyone talks about the well-known cases or issues that emerge in court before a panel of three judges, but the critical mass is when an individual walks into court and pleads guilty,” Russo says. “When there’s a confession during an interrogation, the police investigators are obliged to find some other small piece [of evidence]; but in the court, which is trying to cope with tight schedules and limited resources, there are also convictions that are not sufficiently examined.”

Sharon Danieli was a member of the defense team that won the acquittal of Yosef Zohar, who was convicted in the early 2000s of the murder of his father. The case was a well-publicized affair in which the defense team succeeded in proving the son’s innocence. Danieli tells us that he recently won an appeal he filed in the name of a young man of Ethiopian descent who was convicted of raping his sister-in-law multiple times and spent four years in prison before his acquittal. “But I also remember several cases in which convictions were handed down against people who I truly believed to be innocent, and that stays with me,” Danieli says.

Just recently, too, the Supreme Court rejected a request for an additional hearing in the case of a pizza delivery boy who was convicted of raping a young girl on the Golan Heights. Danieli is convinced of the young man’s innocence; for now, however, all legal avenues appear to have been shut off, and the young man is still in prison. “No one has a clue when it comes to the number of false convictions, but based on my experience alone, I could speak of several dozens of such cases,” he says.

How to spot a false conviction

False convictions have telltale signs that make them easier to identify. They tend to pop up whenever there is shoddy eyewitness evidence, unfounded scientific evidence, misconduct on the part of the prosecuting authorities, and false witnesses. And due to the scope of the phenomenon, former justice minister Ayelet Shaked set up the so-called Danziger Committee, or as it’s officially known, the Public Committee for the Prevention and Correction of False Convictions.

In September 2019, the panel, headed by retired Supreme Court Justice Prof. Yoram Danziger, published its initial interim report dealing with convictions based on eyewitnesses who identified the defendant. According to data provided by the police to the committee, in 24.5 percent of the police lineups that took place during the course of investigations from 2016 to 2018, the complainants pointed out individuals who had no connection with the incident at all. These figures are particularly distressing when taking into account the fact that the courts attribute much weight to the complainant’s identification of the defendant, especially when it’s a case of your word against mine. “Any identification made by an eyewitness must be very carefully reviewed and its evidential weight limited,” says the Danziger Committee’s interim report.

Retired Supreme Court Justice Danziger. Photo: Courts, Wikipedia

Figures from the American Innocence Project, currently the subject of a Netflix documentary, also indicate that misidentification is one of the main reasons for wrongful convictions. Out of 180 cases in which convicted individuals were subsequently acquitted on the basis of DNA evidence, for example, more than 100 of the original convictions were also based on eyewitness identification.

When it comes to eyewitness identification, experts explain, numerous things can go wrong and lead to misidentification: any trauma the victim may be suffering, his/her angle of vision, lighting conditions, the distance between the individuals in question, the length of time for which they saw one another, the ethnicity of the perpetrator and victim, as well as personal acquaintance or facial recognition of someone they’ve previously encountered.

“A few years ago, I was representing a man accused of assaulting a resident of East Jerusalem in the Old City,” Ariel Atari recounts. “The indictment was based on the testimony of an eyewitness and the positive identification of the defendant in a police lineup.” The defendant, however, insisted he wasn’t anywhere near the scene of the crime. “I decided to resort to some psychological trickery and I told the defendant not to sit next to me, but at the other end of the courtroom instead, and I put someone completely unrelated to the case in the seat beside me,” Atari continues. “During the hearing in which the eyewitness gave her testimony, I whispered repeatedly to the person next to me to make it look like he was the defendant. At a certain point, I asked the eyewitness to identify the person next to me and she swore he was the assailant. That was the moment when I asked for it to be put on record that the man next to me wasn’t the defendant, but someone else. The case ended there and then.”

It’s hard for the state to fess up

Miscarriages of justice are often the result of sloppy work by the police and the state prosecution. Take, for example, the case of M., a minor from East Jerusalem who spent several months in prison following his arrest, initially for a rape, and then indecent assault – neither of which ever actually happened.

In 2013, M. was working as a delivery driver for an electrical goods store in Jerusalem, and he went out one day to install a television at a customer’s home. Shortly thereafter, the woman filed a complaint with the Jerusalem Police, accusing M. of two sexual offenses. M. was arrested and charges were quick to follow. In court, however, the complainant’s unstable emotional state prior to the alleged incident soon emerged, and it turned out, too, that she had filed some 40 similar complaints against other men in the past, according to Horovitz from the Public Defender's Office, who met M. when he sought to appeal his conviction.

All of the above emerged in court hearings; but the fact that M. became flustered and wasn’t able to eloquently account for the events of the day, together with the testimony of a neighbor who heard something from the complainant’s apartment, convinced three judges that “something happened.” The judges did indeed reduce the offense from rape to attempted indecent assault, but they convicted M. as a minor nevertheless.

In 2015, after spending four months in prison, M. approached Horovitz, pleading innocence. Horovitz looked into whether the complainant had filed additional reports against other men since M.’s conviction, and found eight (which later climbed to 15). “I asked the state prosecutor if my findings were enough to convince her that M. was wrongfully convicted,” Horovitz recounts. “I was led to believe that state prosecution officials were at odds over the matter, but they agreed with us in the end.”

The Supreme Court upheld M.’s appeal and he was cleared of all guilt. He didn’t get back the 5,000 shekels he paid to the complainant in damages.

Sivan Russo, former senior official at the State Attorney’s Office: “There’s no system that doesn’t make mistakes, and it’s unreasonable to assume that the legal system is free of errors. But I disagree with the basic assumption that the state prosecution is driven by a desire to achieve convictions."

Chief Justice Esther Hayut (center) presiding over a panel of her fellow Supreme Court justices. Photo: Reuters

Sivan Russo was the abovementioned state prosecutor. “I struggled to persuade people at the State Attorney’s Office,” she recalls. “There were at least three discussions devoted to my decision to recommend an acquittal; but you must remember that I reviewed the case at a different point in time to the one in which the State Attorney’s Office and the court made their decisions.”

Russo, who served in the Criminal Department of the State Attorney’s Office and oversaw appeals, also tells of additional instances in which she voiced positions contrary to those of the system.

M. agreed initially to be interviewed for this report but subsequently declined. “A lot of people who’ve been convicted of a crime and have served their sentence no longer have the will to fight the system,” says public defender Horovitz. “They don’t want to rub salt into the wound, and the urge to clear their name declines after they’re released from prison.”

Gazal-Ayal from the University of Haifa concludes that, because “the State Attorney’s Office is the body that accuses an individual of criminal wrongdoing – and we know how hard it is to admit one’s own mistakes – there should be an independent entity charged with reviewing and examining cases in the event of an appeal or flaw.”